Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE ... · SLP(C)No.9267 of 2018 Perry Kansagra vs. Smriti Madan Kansagra 3 Petition dated 06.11.2012 was registered as No.G-53

SLP(C)No.9267 of 2018 Perry Kansagra vs. Smriti Madan Kansagra

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1694 OF 2019(@ SPECIAL LEAVE PETITION (CIVIL) NO.9267 OF 2018)

PERRY KANSAGRA ……Appellant

VERSUS

SMRITI MADAN KANSAGRA ..…. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1. Leave granted.

2. This appeal challenges the final Judgment and Order dated 11.12.2017

passed by the High Court of Delhi allowing Review Petition No.221 of 2017

preferred by the respondent against the judgment and order dated 17.02.2017

passed by the High Court of Delhi in MAT App. (F.C.) No.67 of 2016.


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3. The appellant (Kenyan and British Citizen) and Respondent (Indian

Citizen) got married on 29.07.2007 at New Delhi. After marriage, the

Respondent shifted to Nairobi, Kenya and settled into her matrimonial home

with the appellant. A son, named Aditya Vikram Kansagra was born to the

couple on 02.12.2019 at New Delhi. After delivery, the respondent returned

back to Nairobi along with Aditya. Thereafter, the Respondent and Aditya

travelled from Kenya to India on few occasions. Aditya holds Kenyan as well

as British passport.

4. The appellant, Respondent and Aditya came from Nairobi to New Delhi

on 10.03.2012. According to the appellant, the return tickets for travel back

to Nairobi were booked for 06.06.2012. While in India, in May 2012, the

Respondent filed a civil suit registered as CS (OS) No.1604 of 2012 before

the High Court of Delhi praying inter alia for an injunction to restrain the

appellant from removing Aditya from the custody of the Respondent. Upon

notice being issued, the appellant contested the suit in which visitation orders

were passed by the High Court from time to time. The appellant thereafter

filed Guardianship Petition praying inter alia that he be declared the legal

Guardian of Aditya and be given his permanent custody. The Guardianship


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Petition dated 06.11.2012 was registered as No.G-53 of 2012 before the

Family Court, Saket, New Delhi.

5. In terms of visitation orders passed by the High Court, the appellant

along with paternal grandparents were permitted to meet Aditya for 2 hours

on Friday, Saturday and Sunday in the 2nd week of every month. According to

the appellant he flew from Nairobi to New Delhi every month to meet Aditya

along with the paternal grandparents. In view of the pendency of the

guardianship petition, CS (OS) No.1604 of 2012 was disposed of by the High

Court on 31.08.2015, leaving the parties to place their grievances before the

Family Court. The arrangement of visitation was thereafter modified by the

Family Court by its orders dated 09.02.2016 and 09.03.2016.

6. On 18.04.2016, an application was filed by the appellant praying that the

Family Court may direct the Court Counsellor to bring Aditya to the Court for

an in-chamber meeting, which prayer was objected to by the Respondent.

After hearing both sides, the Family Court allowed said application vide

Order dated 04.05.2016, and directed that Aditya be produced before the

Court 07.05.2016. The relevant part of the Order was as under:-


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“…..The court is parens patriae in such proceedings.Petitioner’s visitation with the child is anywayscheduled for 07.05.2016. Let the child be producedbefore the court at 10 am on 07.05.2016 before he goesfor meeting with his father and grand parents.”

7. The Respondent being aggrieved, filed MAT App. (FC) No.67 of 2016

before the High Court. On 06.05.2016, after hearing both sides, Division

Bench of the High Court referred the parties to mediation and also directed

that Aditya be produced before the Court on 11.05.2016. Paragraphs 7 and 9

of said Order were :-

“7. During our interaction with the parties, a desire isexpressed by the parties to make one more attempt fora negotiated settlement of all disputes between theparties by recourse to mediation. The parents of therespondent are also present and have joined theproceedings before us. They have also submitted thatthey would like to make an attempt for a negotiatedsettlement for all disputes between the parties.

… … … … …

9. With the consent of parties, it is directed asfollows:

(i) The parties shall appear before Ms. SadhanaRamchandran, learned Mediator in SAMADHAN-Delhi High Court Mediation and Conciliation Centreon 9th May, 2016 at 2:30 pm.


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(ii) It shall be open for the learned Mediator to joinany other person or relative of the parties, as may bedeemed necessary, for a holistic and effectivemediation.

(iii) In case, the respondent or any of his relative arenot available in India, it shall be open for the learnedMediator to join them by any electronic mode ofcommunication including Skype, Video Conferencing,etc. at the cost of the respondent.

(iv) It shall also be open for the learned Mediator tomeet the child at any place, as may be deemedconvenient to her, and to arrange any visitation ormeetings with the respondent of the child with theconsent of the parties.”

8. Thereafter, the matter came up on 11.05.2016. The High Court

interacted with Aditya and following observations were made in paras 2 to 6

of its Order :-

“2. We are also informed that the child has today metwith Ms. Sadhana Ramachandran, learned Mediator aswell as Ms. Swati Shah, Counsellor in SAMADHAN –Delhi High court Mediation and Conciliation Centreand that the mediation efforts are still underway.

3. The son of the parties – Master Aditya VikramKansagra has been produced before us today. We havealso had a long conversation with him and are deeplyimpressed with the maturity of this intelligent 6½ yearold child who displays self confidence and aremarkable capacity of expressing himself with clarity.He exhibits no sign of confusion or nervousness at all.


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4. We also note that the child was comfortable in hisinteraction with his father and grandparents in court.The child has expressed happiness at his visitationswith his father and grandparents. He unreservedlystated that he looks forward to the same. MasterAditya Vikram Kansagra is also able to identify otherrelatives in Kenya and enthusiastically refers to hisexperiences in that country. It is apparent that thechild has bonded well with them.

5. We must note that the child is at the same timedeeply attached to his mother and Nani. His bearingand personality clearly bear the stamp of the fineupbringing being given to him by the appellant and hermother.

6. As of now, since 9th February, 2016, the child ismeeting his father and grandparents between 10:30 amand 05:00 pm on Saturday and Sunday in the secondweek of every month and for two hours on Friday inthe second week of every month. The visitation issupervised as the court has appointed a Counsellor whohas been directed to remain present throughout thevisitation.”

9. During the ensuing mediation sessions, the Mediator and the Counsellor

interacted with Aditya. The Counsellor interacted with Aditya on 08.07.2016

and 11.07.2016. Based upon her interactions with him, the Counsellor

submitted a report dated 21.07.2016 in a sealed cover. Though, mediation

was attempted on many occasions, the parties were unable to resolve their


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disputes and differences and an interim report was submitted by the Mediator

on 22.07.2016. On 11.08.2016, the sealed cover containing the report of the

Counsellor was opened and the report was taken on record. Copies of the

report of the Counsellor were given to the parties. In an application moved

the next day, i.e. on 12.08.2016, the appellant relied upon the report of the

Counsellor dated 21.07.2016 and prayed for permission to speak to Aditya on

telephone. While opposing the prayer, the respondent objected to such

reliance on the ground of confidentiality. The Mediator thereafter filed final

report in November, 2016 reporting failure.

10. Thereafter the matter came up for final arguments before another

Division Bench of the High Court. The Respondent raised the issue of

admissibility of the reports submitted by the Mediator and Counsellor

contending that the reports could not be relied upon in view of principle of

confidentiality. The High Court dealt with said submissions and while

disposing of the appeal, by its judgment dated 17.02.2017 observed as under:-

“10. The mediation has failed.

11. But we are called upon to decide an importantquestion concerning confidentiality of the mediationprocess for the reason on October 11, 2016 a report


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was received from the Mediator which was taken onrecord and copy given to both parties. The report ofthe Mediator refers to a child counsellor being involvedwho had also given an independent report which wasalso taken on record.

… … … … … … …

“13. The report of the child counsellor is to the effectthat the child was normal and in spite of being happywith his mother he seems to idolize his father andaffectionately remembers his house in Kenya; aboutwhich house he loved talking with the counsellor. Theaffection and the bond of the child with the father wascommended as the positive attitude of the appellantwho, obviously was not torturing the child. The childshowed his love, affection and comfort for theappellant, evidenced by he fondly and happily talkingabout a recent vacation in Kashmir with his mother.The child was not uncomfortable with the idea ofmaking a trip to Kenya.

… … … … … … …

17. There can be no quarrel with the proposition thatmediation proceedings are confidential proceedingsand anything disclosed, discussed or proposed by theparties before the mediator cannot be recorded, muchless divulged. The reason being that very often duringmediations, offers, counter offers and proposals aremade. The ethos of mediation would bar disclosure ofspecified communications and writings associated withmediation. Parties are encouraged during mediation toengage in honest discussions as regards their problemsand in matrimonial disputes these honest discussionsmany a time give rise to a better understandingbetween the couple. Such an approach encourages a


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forget and forgive attitude to be formed by the parties.If either spouse is under an apprehension that the well-meant deliberations might subsequently be usedagainst them it would hamper an unreservedconsideration of their problems. The atmosphere ofmutual trust during mediation warrants completeconfidentiality.

18. But where the scope of mediation is the solution ofa child parenting issue, report by a mediator or a childcounsellor concerning the behavior and attitude of thechild would not fall within the bar of confidentiality forthe reason no information shared by the couple is beingbrought on record. The mandate of Section 12 of theFamily Courts Act, 1984 cannot be lost sight of.

19. In the instant case, what has been taken on recordduring mediation proceedings is the report of the ChildCounsellor and the mediator, which we find are reportscommending the good attitude of both parents who,unlike many other couples, are not using the child as atool to take revenge against the other. As noted above,the interaction by the previous Division Bench with thechild has been recorded in the order dated May 11,2016 i.e. the child being equally comfortable with bothparents and having a desire to spend quality time withnot only his mother and relatives from the maternalside but even with the father and relatives from thepaternal side. Such reports are a neutral evaluation ofexpert opinion to a Court to guide the Court as to whatorders need to be passed in the best interest of thechild. These reports are not confidentialcommunications of the parties.

20. Having answered the issue which incidentallyarose, and noting that otherwise the appeal has beenrendered infructuous, we terminate further proceedings


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in the appeal inasmuch as no orders are now warrantedto be passed in the appeal.

21. The learned Judge Family Court would considergranting over night interim custody to the respondentwhen he is in India by imposing such terms andconditions which would ensure that the child is notremoved from the territory of India. The issueconcerning the appellant claiming that she has lost theKenyan passport of the child and a fresh passport beingissued in the name of the child would also be lookedinto by the learned Judge, Family Court.”

11. On 18.03.2017, the respondent filed Review Petition No.221 of 2017

questioning the judgment dated 17.02.2017. The Review Petition was

allowed by yet another Division Bench of High Court by judgment and order

dated 11.12.2017. After posing the question, “..whether the Counsellor’s

report furnished in the course of mediation proceedings or the Mediator’s

report in case of mediation, when the process fails, can be used by either of

the parties during trial”, the High Court concluded that the reports of the

Mediator and the Counsellor “..shall be disregarded by the family court, when

it proceeds to decide the merits of the case”. During the course of its

discussion, the High Court noted Delhi High Court Mediation and

Conciliation Rules, 2004; Format of application of SAMADHAN (the Delhi

High Court Mediation and Conciliation Centre); Conciliation rules of


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UNCITRAL; Sections 75 and 81 of the Arbitration and Conciliation Act,

1996; Mediation Training Manual issued by the Mediation and Conciliation

Project Committee, Supreme Court of India and Chartered Institute of

Arbitrator’s Rules mandating confidentiality in matters pertaining to

mediation and observed as under:-

“21. There can, be no quarrel with the proposition thatthe mediation proceedings are confidential andanything disclosed, discussed or proposed before themediator need not be recorded, much less divulged andthat if it is done there would always be an apprehensionthat the discussion may be used against the parties andit would hamper the entire process. The atmosphere ofmutual trust warrants complete confidentiality and thesame is in fact noted in the main judgment. Thepetitioner is aggrieved by its later part which notes“but where the scope of the mediation is resolution ofchild parenting issue, the report concerning thebehavior and attitude of the child would not fall withinthe bar of confidentiality”. To our mind, this is againstthe principle of mediation and charts the course of aslippery slope, as this judgment would hereafterdiscuss.

22. No exceptions are made in the mediation ruleseither in our laws or in various jurisdictions mentionedabove to the absolute rule of confidentiality. ThisCourt held the mandate of Section 12 of the FamilyCourts Act, 1984 cannot be lost sight of; yet the issueis whether the order dated May 6, 2016 was passedpurely under Section 12 of the Family Courts Act,1984 or it was simply to facilitate mediation ofdisputes between the parents of the child.


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… … … … … … … …

25. Section 12 of the 1984 Act, empowers the FamilyCourt with the discretion to refer the parties to acounsellor, Undoubtedly, that power also extends to theappellate court. However, this case has three ratherunusual features: one that the Court never authorizedthe mediator to exercise power that is vested statutorilywith it. The discretion to involve or not to involve acounsellor is the Court’s and is non delegable. Therespondent husband’s argument that the referral orderpermitted the mediator to involve “others” cannot bemeant to authorize the exercise of discretion that issolely vested with the Court. Second, the issue ofconfidentiality is to be examined because the mediatorfurnished two reports-to the Court, in this case. Amediator’s position is unique; undoubtedly she (or he)has professional training and competence to handleissues that involve intense and bitter struggle overmatrimonial issues, properties, shared household,custody, (temporary or permanent) and in commercialmatters, issues that have monetary and financialimpacts. In all cases, parties express their fears, theirexpectations and their dearly held positions on thestrength of the confidence that they repose in themediator and the mediation process- both of which arereinforced by the absolute cloak of confidentiality.Given these imperatives, mediator’s reports, where theprocess has led to failure, should not record anythingat all. Having regard to this position the fact that amediator in a given case, proposes-for all the best andbona fide reasons, the involvement of a counsellor,does not in any manner undermine or take away theCourt’s sole power to exercise it. In the eventuality ofthe parties’ agreeing, to such a course, they have to beasked to approach the Court, for appropriate orders: the


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Court would then refer them to the counsellor. Thequestion of the kind of report to be submitted to theCourt and whether it would be a part of the recordwould be known during the course of the proceeding.In the present case, the parties merely consented.There is nothing to show that the parties were awarethat the mediator’s report, with regard to not merelywhat transpired, but with respect to her reflections,would be given to the court; nor was there anything toshow that they were aware - when they consented tothe involvement of a counsellor that her report wouldbe given to the court. The third unusual feature is thatin at least two sittings with the counsellor, the mediatorwas present. This “joint” proceeding is, in the opinionof the Court, unacceptable. It can lead to undesirableconsequences, especially if the mediator and counsellorproceed to furnish their reports (as they did in thiscase). A reading of both reports in the present case,paints a definite picture to the reader stronglysuggestive of a plausible course of action orconclusion. It is this, the power of suggestion, whichparties are guaranteed protection from, when theyagree to mediation. Imagine if there were to be apossibility of divergence of opinion. Where would thatlead? Aside from adding to contentiousness, the Courttoo would be left confounded.

… … … … … … … …

29. The observations made in the main judgmentdated February 17, 2017 in effect would permit themediators to exercise de facto, or in default, theexclusive powers of the Court under Section 12 of the1984 Act, which are non delegable. There is noquestion of validation of such action, by a later order ofthe Court. The danger of this would be that Courts canwell draw upon such irregularly produced material, to


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arrive at conclusions. The requirement of Section 12also has to be understood as the mandate of law thatonly the Court and no other body can refer the partiesto counseling. The proposition that something whichthe law mandates to be performed in one manner andno other manner “where a power is given to do acertain thing in a certain way, the thing must be donein that way or not at all”1 applies with full force. Theorder dated May 06, 2016 in this case merely referredthe parties to the mediator and carved out the courseand ambit of mediation. The report of the counsellorwas never sought by the Court, and yet was treated tobe one under Section 12 of the Act of 1984. Had theCourt invoked Section 12 of the Family Courts Act,1984 it would have clearly spelt out and recorded thatwhile doing so; and in that sense there ought to havebeen a clear invocation of Section 12. The absence ofsuch reference necessarily meant that the reference to“others’ meant only those connected with the dispute,such as family members of either the husband or thewife, whose participation was to facilitate amicabledispute resolution, not independent evaluation by acounsellor in an unguided manner to be incorporatedor annexed to a mediation report.

30. If such a position is allowed as in this case,mediation may then well be used as a forum forgathering expert opinion which would then enter themain file of the case. The mandate of Section 89 of theCivil Procedure Code, 1908, read with Rule 20 andRule 21 of the Delhi High Court Mediation andConciliation Rules, 2004 provides for confidentialityand non-disclosure of information shared with themediator and during the proceedings of mediation. Inthe present case, the help of the counsellor sought by

1Nazir Ahmed v King Emperor AIR 1936 PC 243 followed by State of UP v. Singhara Singh AIR 1964 SC 358


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the mediator to get holistic settlement between theparties was not ordered in the manner visualized bySection 12 of the Family Courts Act, 1984.Consequently, neither the report of the mediator nor ofthe counsellor could have been allowed to be exhibited.They are contrary to the mandate of principlesgoverning the mediation – they undermine partyautonomy and choice; besides, they clearly violateSection 75 of the Arbitration and Conciliation Act. Theobservations in the judgment dated February 17, 2017to the extent it notes that “the reports of the mediatoras also of the counsellor concerning the behavior andattitude of the child, especially when the mediationprocess has failed would not fall within the bar ofconfidentiality and hence cannot be used in anyproceeding…… Such reports are a neutral evaluationof expert opinion to a Court to guide the Court as towhat orders need to be passed in the best interest of thechild. These reports are not confidentialcommunications of the parties” and carving a generalexception to mediation confidentiality in child custodymatters and disputes for which the Family Court canseek the assistance of the counsellor, under Section 12of the 1984 Act, are hereby recalled. We hasten to addthat this judgment is not a reflection on the mediatorwhose unstinted track record is known to all, or theendeavor of the counsellor, who too is veryexperienced in her field. Their commitment andsincerity to secure a settlement satisfactory to all, andthe mediation process in general, is not doubted; thisjudgment should in no way dampen that zeal anddetermination that they have displayed.”

12. The view taken by the High Court in allowing the review is presently

under challenge. Mr. Anunya Mehta, learned Advocate for the appellant


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submitted - (a) the High Court exceeded the scope of review jurisdiction as if

it was sitting in appeal over the earlier judgment; that in terms of law laid

down by this court an error which is not self-evident and which is required to

be detected by a process of reasoning cannot be termed as error apparent on

the face of the record; b) the report of the Counsellor was not hit by

confidentiality as it merely recorded the interaction of the Counsellor with the

child and did not record any information or submission by parties to the lis;

that there is a recognized exception to the rule of confidentiality in child

custody matters as the court, in such matters exercises parens patriae

jurisdiction.

Mr. Saurabh Kirpal, learned Advocate for the respondent responded -

(i) mediation reports are part of confidential proceedings and cannot be

permitted to be used in court proceedings for which reliance was placed on

various statutory provisions; (ii) the Counsellor was not appointed under

Section 6 of the Family Courts Act; (iii) exception under Rule 8 (viii) to (xiv)

of the Family Court Rules cannot be read as exception to Rules 20 and 23 of

the Mediation Rules; (iv) the mediation reports given by the Counsellor-in-

mediation did not fall within the exceptions provided in rule 8; (v) there was

no waiver of confidentiality and the respondent had objected to the use of the


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reports at the first instance; (vi) the earlier order being based on a

misconception of law, the High Court was right in exercising review

jurisdiction.

13. The issues that arise for our consideration can broadly be put under two

heads:

a) Whether the High Court was justified in exercising review

jurisdiction and setting aside the earlier judgment and

b) Whether the High Court was correct in holding that the reports of

the Mediator and the Counsellor in this case were part of confidential

proceedings and no party could be permitted to use the same in any

court proceedings or could place any reliance on such reports.

14. As regards the first issue, relying on the decisions of this Court in

Inderchand Jain (dead) through Lrs. vs. Motilal (dead) through Lrs.2, Ajit

Kumar Rath vs. State of Orissa and others3 and Parsion Devi and others vs.

Sumitri Devi and others4, it was submitted by the appellant that the exercise

of review jurisdiction was not warranted at all. In Inderchand Jain2 it was

observed in paras 10, 11 and 33 are as under:-2 (2009) 14 SCC 6633 (1999) 9 SCC 5964 (1997) 8 SCC 715


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“10. It is beyond any doubt or dispute that the reviewcourt does not sit in appeal over its own order. Arehearing of the matter is impermissible in law. Itconstitutes an exception to the general rule that once ajudgment is signed or pronounced, it should not bealtered. It is also trite that exercise of inherentjurisdiction is not invoked for reviewing any order.

11. Review is not appeal in disguise. In Lily Thomasv. Union of India5 this Court held: (SCC p. 251, para56)

“56. It follows, therefore, that the power of review canbe exercised for correction of a mistake but not tosubstitute a view. Such powers can be exercised withinthe limits of the statute dealing with the exercise ofpower. The review cannot be treated like an appeal indisguise.”

… … … … … … … … … …

33. The High Court had rightly noticed the reviewjurisdiction of the court, which is as under:“The law on the subject—exercise of power of review,as propounded by the Apex Court and various otherHigh Courts may be summarised as hereunder:

(i) Review proceedings are not by way of appealand have to be strictly confined to the scope andambit of Order 47 Rule 1 CPC.

(ii) Power of review may be exercised whensome mistake or error apparent on the fact of recordis found. But error on the face of record must be suchan error which must strike one on mere looking at the

5(2000) 6 SCC 224


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record and would not require any long-drawn processof reasoning on the points where there mayconceivably be two opinions.

(iii) Power of review may not be exercised on theground that the decision was erroneous on merits.

(iv) Power of review can also be exercised forany sufficient reason which is wide enough toinclude a misconception of fact or law by a court oreven an advocate.

(v) An application for review may be necessitatedby way of invoking the doctrine actus curiaeneminem gravabit.”

In our opinion, the principles of law enumerated by it, inthe facts of this case, have wrongly been applied.”

In Ajit Kumar Rath3, it was observed:-

“29. In review proceedings, the Tribunal deviatedfrom the principles laid down above which, we mustsay, is wholly unjustified and exhibits a tendency torewrite a judgment by which the controversy had beenfinally decided. This, we are constrained to say, is notthe scope of review under Section 22(3)(f) of theAdministrative Tribunals Act, 1985…………”

Similarly, in Parsion Devi4 the principles were summarized as under:

“9. Under Order 47 Rule 1 CPC a judgment may beopen to review inter alia if there is a mistake or an errorapparent on the face of the record. An error which isnot self-evident and has to be detected by a process ofreasoning, can hardly be said to be an error apparent on


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the face of the record justifying the court to exercise itspower of review under Order 47 Rule 1 CPC. Inexercise of the jurisdiction under Order 47 Rule 1 CPCit is not permissible for an erroneous decision to be“reheard and corrected”. A review petition, it must beremembered has a limited purpose and cannot beallowed to be “an appeal in disguise”.

15. On the other hand, reliance was placed by the respondent on the decision

in Board of Control for Cricket in India and another vs. Netaji Cricket Club

and others6 to submit that exercise in review would be justified if there be

misconception of fact or law. Para 90 of said decision was to the following

effect:

“90. Thus, a mistake on the part of the court whichwould include a mistake in the nature of theundertaking may also call for a review of the order. Anapplication for review would also be maintainable ifthere exists sufficient reason therefor. What wouldconstitute sufficient reason would depend on the factsand circumstances of the case. The words “sufficientreason” in Order 47 Rule 1 of the Code are wideenough to include a misconception of fact or law by acourt or even an advocate. An application for reviewmay be necessitated by way of invoking the doctrine“actus curiae neminem gravabit”.”

6 (2005) 4 SCC 741


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16. We have gone through both the judgments of the High Court in the

instant case and considered rival submissions on the point. It is well settled

that an error which is required to be detected by a process of reasoning can

hardly be said to be an error apparent on the face of the record. To justify

exercise of review jurisdiction, the error must be self-evident. Tested on this

parameter, the exercise of jurisdiction in the present case was not correct.

The exercise undertaken in the present case, in our considered view, was as

if the High Court was sitting in appeal over the earlier decision dated

17.02.2017. Even assuming that there was no correct appreciation of facts

and law in the earlier judgment, the parties could be left to challenge the

decision in an appeal. But the review was not a proper remedy at all. In our

view, the High Court erred in entertaining the review petition and setting aside

the earlier view dated 17.02.2017. Having so concluded, the logical course in

the circumstances would be to set aside the judgment under appeal and permit

the respondent to challenge the judgment dated 17.02.2017. But such a

course would entail further litigation and therefore, we have considered the

matter from the stand point of second issue as well.


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17. At the outset, we must, therefore, consider various provisions on which

reliance was placed by either side.

18. The Family Courts Act, 1984 (hereinafter referred to as the Act) was

enacted to provide for the establishment of Family Courts with a view to

promote conciliation and secure speedy settlement of disputes relating to

marriage and family affairs and for matters connected therewith. Section 4

deals with “appointment of Judges” and sub-section (4) states that while

selecting persons for appointment as Judges – every endeavor shall be made

to ensure that persons committed to the need inter alia to promote the welfare

of children and to promote settlement of disputes by conciliation and

counselling, are selected. Under Section 6 Counsellors can be appointed by

the State Government in consultation with the High Court. Section 7 deals

with “jurisdiction” and under sub clause (g) of sub-section (1) the jurisdiction

extends in relation to guardianship issues, or the custody of, or access to, any

minor. Section 9 deals with “duty of Family Court to make efforts for

settlement” and empowers the Court, subject to any rules made by the High

Court, to follow such procedure as may be deemed fit. Section 10 deals with

“procedure generally” and states inter alia that Family Court can lay down its


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own procedure with a view to arrive at a settlement. Section 12 deals with

“assistance of medical and welfare experts” and Section 20 gives overriding

effect to the Act. Section 21 enables the High Court to frame rules which may

inter alia provide for “efforts which may be made by, and the procedure

which may be followed by, a Family Court for assisting and persuading

parties to arrive at a settlement”.

The relevant Sections being Sections 6, 9 and 12 of the Act are as

under:-

“6. Counsellors, officers and other employees ofFamily Courts. – (1) The State Government shall inconsultation with the High Court, determine thenumber and categories of counsellors, officers andother employees required to assist a Family Court inthe discharge of its functions and provide the FamilyCourt with such counsellors, officers and otheremployees as it may think fit.

(2) The terms and conditions of association of thecounsellors and the terms and conditions of service ofthe officers and other employees, referred to in sub-section (1), shall be such as may be specified by rulesmade by the State Government.

9. Duty of Family Court to make efforts forsettlement – (1) In every suit or proceeding, endeavorshall be made by the Family Court in the first instance,where it is possible to do so consistent with the natureand circumstances of the case, to assist and persuade


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the parties in arriving at a settlement in respect of thesubject-matter of the suit or proceeding and for thispurpose a Family Court may, subject to any rules madeby the High Court, follow such procedure as it maydeem fit.

(2). If, in any suit or proceeding, at any stage, itappears to the Family Court that there is a reasonablepossibility of a settlement between the parties, theFamily Court may adjourn the proceedings for suchperiod as it think fit to enable attempts to be made toeffect such a settlement.

(3) The power conferred by sub-section (2) shallbe in addition to, and not in derogation of any otherpower of the Family Court to adjourn the proceedings.

12. Assistance of medical and welfare experts.- Inevery suit or proceedings, it shall be open to a FamilyCourt to secure the services of a medical expert or suchperson (preferably a woman where available), whetherrelated to the parties or not, including a personprofessionally engaged in promoting the welfare of thefamily as the court may think fit, for the purposes ofassisting the Family Court in discharging the functionsimposed by this Act.”

19. Pursuant to the rule making power, the High Court of Delhi notified

the Family Courts (Procedure) Rules, 1992 (hereinafter referred to as the

Rules). Rule 5 deals with Institution of Proceedings while Rule 8 deals with

procedure to be followed to arrive at a settlement. Rule 8 is to the following

effect.


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“8. Procedure to be followed to arrive at a settlement(i) In every suit or proceeding the Judge may, at anystage, direct the parties to attend a counsellor with aview to promote conciliation and to secure speedysettlement of disputes.

(ii) The parties shall be bound to attend the counselloron the date and time fixed by the Judge.

(iii) The counsellor may require the parties or any oneof them to appear on a date and time fixed for furthercounselling. In case any of the parties fails to appear,the counsellor may report the matter to the Judge andthe Judge shall pass such orders including awarding ofcosts, as the circumstances of the case may require.The Judge may nevertheless require the counsellor tosubmit a report.

(iv) The counsellor, in the discharge of his duties may:-

(a) Pay visits to the homes of both or any of theparties.

(b) Interview, relatives, friends andacquaintances of the parties or any of them.

(c) Seek such information from the employer ofany of the parties, as may be deemed necessary.

v) With the prior permission of the Judge thecounsellor may:-

a) refer the parties to an expert in other areas,such as medicine or psychiatry.


26

b) seek assistance of any of the institutions,organizations or persons mentioned in Section 5of the Act.

vi) The counsellor shall maintain a diary in respect ofevery case giving in brief the steps taken.

vii) Information gathered by the counsellor, anystatement made before the counsellor or any notes orreport prepared by the counsellor will be treated asconfidential. The counsellor shall not be called upon todisclose such information, statements, notes or reportto any court except with the consent of both the parties.

viii) The counsellor shall not be asked to give evidencein any court in respect of such information statementsor notes.

Provided, however, that the counsellor will submitto the Judge a report relating to the home environmentof the parties concerned, their personalities and theirrelationship with their child and/or children in order toassist the Judge in deciding the question of the custodyor guardianship of any child or children of themarriage.

Provided further that the counsellor will also submit tothe Judge a report relating to the home environment,income or standard of living of the party or partiesconcerned in order to assist the Judge in determiningthe amount of maintenance and/or alimony to begranted to one of the parties.

ix) The Judge may also request the counsellor tosubmit a report on any other matter, the Judge considernecessary.


27

x) A copy of any report may be supplied to theparties, on such request being made by the parties.

xi) The parties will be entitled to make theirsubmissions on the report.

xii) The counsellor shall not be asked to give evidencein any court in respect of any report made by him.

xiii) Save as aforesaid, the counsellor will submit abrief memorandum to the Judge informing the Judge ofthe outcome of the proceedings within the timespecified by the Judge.

xiv)When the parties arrive at a settlement before thecounsellor relating to the dispute or any part thereof,such settlement shall be reduced to writing and shall besigned by the parties and countersigned by thecounsellor. The Judge shall pronounce a decree ororder in terms thereof unless the Judge considers theterms of the settlement unconscionable or unlawful.

xv) Cohabitation between the parties in the course ofconciliation proceedings will not be deemed to becondonation of the matrimonial offence.

xvi)Even after passing of the decree or order the Judgemay require the counsellor to supervise the placementof children in custody of a party and to pay surprisevisits to the home where the child resides. In case anyalternation is required in the arrangements thecounsellor will make a report to the Judge. The Judgemay after notice to the parties pass such orders asJudge may deem fit.

xvii) The Judge may require the counsellor tosupervise, guide and/or assist reconciled couples, even


28

after the disposal of the case for such further period asthe court may order.

xviii) On a request received from the counsellorthe Judge may issue process to any person to appearbefore the counsellor at such place, date and time asmay be desired by the counsellor.”

20. Since reliance has been placed on various other statutory provisions to

bring home the issue regarding confidentiality in mediation process, some of

those provisions are also extracted herein:-

A] Sections 75 and 81 of the Arbitration and Conciliation Act, 1996 are

to the following effect:-

“75. Confidentiality – Notwithstanding anythingcontained in any other law for the time being in force,the conciliator and the parties shall keep confidentialall matters relating to the conciliation proceedings.Confidentiality shall extend also to the settlementagreement, except where its disclosure is necessary forpurposes of implementation and enforcement.

81. Admissibility of evidence in other proceedings.– The parties shall not rely on or introduce as evidencein arbitral or judicial proceedings, whether or not suchproceedings relate to the dispute that is the subject ofthe conciliation proceedings,-(a) views expressed or suggestions made by the otherparty in respect of a possible settlement of the dispute;


29

(b) admissions made by the other party in the courseof the conciliation proceedings;

(c) proposals made by the conciliator;

(d) the fact that the other party had indicated his will-ingness to accept a proposal for settlement made by theconciliator.”

B] Rule 20 of the Delhi High Court Mediation and Conciliation Centre

(SAMADHAN) is to the following effect:-

“Rule 20: Confidentiality, disclosure andinadmissibility of information.

(a) When a Mediator /Conciliator receives factualinformation concerning the dispute(s) from anyparty, he shall disclose the substance of thatinformation to the other party, so that the other partymay have an opportunity to present suchexplanation as it may consider appropriate.

Provided that, when a party gives information to theMediator/Conciliator subject to a specific conditionthat it be kept confidential, the Mediator/Conciliatorshall not disclose that information to the other party.

(b)Receipt or perusal, or preparation of records, reportsor other documents by the Mediator/Conciliator,while serving in that capacity shall be confidentialand the Mediator/Conciliator shall not be compelledto divulge information regarding those documentsnor as to what transpired during theMediator/Conciliator before any Court or tribunal


30

or any other authority or any person or group ofpersons.

(c) Parties shall maintain confidentiality in respect ofevents that transpired during the Mediation/Conciliation and shall not rely on or introduce thesaid information in other proceedings as to:

(i) views expressed by a party in the course ofthe mediation/conciliation proceedings;

(ii) documents obtained during themediation/conciliation which were expresslyrequired to be treated as confidential or othernotes, drafts or information given by theparties or the Mediator/Conciliator;

(iii) proposals made or views expressed by theMediator/Conciliator.

(iv) admission made by a party in the course ofmediation/conciliation proceedings;

(v) The fact that a party had or had not indicatedwillingness to accept a proposal.

d) There shall be no audio or video recording of themediation/conciliation proceedings.

e) No statement of parties or the witnesses shall berecorded by the Mediator/Conciliator.”


31

C] The format of the application which the Centre for Mediation and

Conciliation (SAMADHAN) requires every party to fill in is to the

following effect :-

“I agree to attend all the Mediation Sessions at the timeand place fixed by the Mediator. Any party canwithdraw from mediation if they so choose on findingthat it is not helping them or their case. Each party willbear its own lawyer’s fees. Each party will also sharethe cost of the Mediator’s fees equally, unless the Courtdirects otherwise.

The entire process of mediation will be confidentialand whatever is submitted to the Mediator will not bedivulged or produced or be admissible in any Courtproceedings. The Mediator will not be compelled toappear as a witness in any Court of law.

The mediation process is voluntary and not binding onthe parties till they, on their own volition, reach asettlement agreement and sign the same.”

D] Certain other provisions relied upon by the respondent are:-

“i) The UNICITRAL Conciliation Rules contain Article14, which provides for confidentiality of all mattersrelating to conciliation.

ii) That Section of the Uniform Mediation Act, USA,2003, provides for privilege against disclosure,admissibility and discovery of communication andinformation exchanged during mediation process.


32

iii) That Rule of the Honk Kong International ArbitrationCentre Rules mandates mediation to be a private and aconfidential process.

iv) The Code of Practice of Family Mediators followedby the Family Mediation Council, England and Wales inparagraph 5.5 provides that the Mediator must notdisclose any information about, or obtained in the courseof the mediation to anyone, including a court appointedofficer or court, without express consent of eachparticipant, an order of the court or where the law imposesan overriding obligation of disclosure on Mediator to doso.

v) The Family Justice Courts, Singapore also mandatesthat all information and matters discussed during theFamily Dispute Resolution Conferences, counselling,mediation or co-mediation are to be confidential.

vi) The Members Code of Professional Conduct ofFamily Mediation Canada in Article 7 extends theprinciple of confidentiality to the documents preparedspecifically for or resulting from mediation.

vii) The California Rules of Court, 2017 also provides forconfidentiality to be maintained in mediation relating tochild custody matters.”

21. In Afcons Infrastructure Limited and another vs. Cherian Varkey

Construction Company Private Limited and others7 while dealing with

issues concerning scope and width of Section 89 Civil Procedure Code and

7 (2010) 8 SCC 24


33

the modalities of Alternative Dispute Resolution mentioned therein, this Court

noted various kinds of disputes in respect of which process of Alternative

Dispute Resolution has normally been found to be suitable. Para 28 of the

decision was as under:-

“28. All other suits and cases of civil nature inparticular the following categories of cases (whetherpending in civil courts or other specialtribunals/forums) are normally suitable for ADRprocesses:

(i) All cases relating to trade, commerce and contracts,including• disputes arising out of contracts (including all moneyclaims);• disputes relating to specific performance;• disputes between suppliers and customers;• disputes between bankers and customers;• disputes between developers/builders and customers;• disputes between landlords and tenants/licensor andlicensees;• disputes between insurer and insured;

(ii) All cases arising from strained or souredrelationships, including• disputes relating to matrimonial causes, maintenance,custody of children;• disputes relating to partition/division among familymembers/coparceners/co-owners; and• disputes relating to partnership among partners.


34

(iii) All cases where there is a need for continuation ofthe pre-existing relationship in spite of the disputes,including• disputes between neighbours (relating toeasementary rights, encroachments, nuisance, etc.);• disputes between employers and employees;• disputes among members ofsocieties/associations/apartment owners’ associations;

(iv) All cases relating to tortious liability, including• claims for compensation in motor accidents/otheraccidents; and

(v) All consumer disputes, including• disputes where atrader/supplier/manufacturer/service provider is keen tomaintain his business/professional reputation andcredibility or product popularity.

The above enumeration of “suitable” and “unsuitable”categorisation of cases is not intended to be exhaustiveor rigid. They are illustrative, which can be subjectedto just exceptions or additions by the court/tribunalexercising its jurisdiction/discretion in referring adispute/case to an ADR process.”

22. In Moti Ram (dead) through Lrs. and another vs. Ashok Kumar and

another8 it was held that mediation proceedings are totally confidential and in

case the mediation is unsuccessful, the Mediator should not write anything

8 (2011) 1 SCC 466


35

that was discussed, proposed or done during the mediation proceedings. The

observations in that behalf were:-

“2. In this connection, we would like to state thatmediation proceedings are totally confidentialproceedings. This is unlike proceedings in court whichare conducted openly in the public gaze. If themediation succeeds, then the mediator should send theagreement signed by both the parties to the courtwithout mentioning what transpired during themediation proceedings. If the mediation isunsuccessful, then the mediator should only write onesentence in his report and send it to the court statingthat the “mediation has been unsuccessful”. Beyondthat, the mediator should not write anything which wasdiscussed, proposed or done during the mediationproceedings. This is because in mediation, very often,offers, counter offers and proposals are made by theparties but until and unless the parties reach to anagreement signed by them, it will not amount to anyconcluded contract. If the happenings in the mediationproceedings are disclosed, it will destroy theconfidentiality of the mediation process.”

Similarly, while dealing with a matter arising under the Arbitration and

Conciliation Act, 1996, it was held by this Court in Govind Prasad Sharma

and others vs. Doon Valley Officers Co-operative Housing Society Ltd.9

that “both the Conciliator and the parties must keep as confidential all matters

relating to conciliation proceedings”.

9 AIR 2017 SC 4968 : 2017 (11) SCALE 231


36

23. Reliance was placed by the respondent on the decisions mentioned above

and some statutory provisions including procedural norms in different

jurisdictions to submit that there must be absolute confidentiality in respect of

any statements made during the course of mediation. The appellant, however,

relies upon Sub-Rule(viii) of Rule 8 of the Rules in support of the submission

that in relation to matters, inter alia, of custody or guardianship of any child

or children, the Counsellor could be asked to submit to the Judge a report

relating to home environment of the parties concerned, their personalities and

their relationship with the child and or children in order to assist the Judge in

deciding the questions involved in the matter.

24. We, thus, have line of cases dealing with mediation/conciliation and

other proceedings in general and Rule 8 of the Rules dealing inter alia, with

custody issues which is in the nature of an exception to the norms of

confidentiality. It is true that the process of mediation is founded on the

element of confidentiality. Qualitatively, Mediation or Conciliation stands on

a completely different footing as against regular adjudicatory processes.

Instead of an adversarial stand in adjudicatory proceedings, the idea of

mediation is to resolve the dispute at a level which is amicable rather than


37

adversarial. In the process, the parties may make statements which they

otherwise they would not have made while the matter was pending

adjudication before a court of law. Such statements which are essentially

made in order to see if there could be a settlement, ought not to be used

against the maker of such statements in case at a later point the attempts at

mediation completely fail. If the statements are allowed to be used at

subsequent stages, the element of confidence which is essential for healthy

mediation/conciliation would be completely lost. The element of

confidentiality and the assurance that the statements would not be relied upon

helps the parties bury the hatchet and move towards resolution of the disputes.

The confidentiality is, thus, an important element of mediation/conciliation.

25. Complete adherence to confidentiality would absolutely be correct in

normal matters where the role of the court is purely of an adjudicator. But

such an approach may not essentially be conducive when the court is called

upon and expected to discharge its role in the capacity as parens patriae and

is concerned with the welfare of a child. All custody and guardianship issues

are resolved on the touchstone or parameter of “best interest of the child”. In

custody and guardianship disputes between two parties, a minor child is in a


38

peculiar situation. At times, both sides are busy fighting legal battles and the

court is called upon in parens patriae to decide what is in the best interest of

the child. In order to reach correct conclusion, the court may interview the

child or may depend upon the analysis of an expert who may spend some

more time with the child and gauge the upbringing, personality, desires or

mental frame of the child and render assistance to the court. It is precisely for

this reason that the element of confidentiality which is otherwise the basic

foundation of mediation/conciliation, to a certain extent, is departed from in

Sub-Rule (viii) of Rule 8 of the Rules.

26. If the reports of the Counsellor touching upon the home environment of

the parties concerned, their personalities and their relationship with their child

or children would assist the court in determining the custody or guardianship

issues, any technicality ought not to stand in the way. Sub-Rule (viii) of Rule

8 seeks to achieve that purpose and makes such material available for the

assessment of the court. The observations of this Court in Ashish Ranjan vs.

Anupma Tandon and another10 have crystalized the approach to be adopted

in matters concerning custody or guardianship issues. Paras 18 & 19 of the

decision are as under:

10 (2010) 14 SCC 274


39

“18. It is settled legal proposition that whiledetermining the question as to which parent the careand control of a child should be given, the paramountconsideration remains the welfare and interest of thechild and not the rights of the parents under the statute.Such an issue is required to be determined in thebackground of the relevant facts and circumstances andeach case has to be decided on its own facts as theapplication of doctrine of stare decisis remainsirrelevant insofar as the factual aspects of the case areconcerned. While considering the welfare of the child,the “moral and ethical welfare of the child must alsoweigh with the court as well as his physical well-being”. The child cannot be treated as a property or acommodity and, therefore, such issues have to behandled by the court with care and caution, with love,affection and sentiments applying human touch to theproblem. Though, the provisions of the special statuteswhich govern the rights of the parents or guardiansmay be taken into consideration, there is nothing whichcan stand in the way of the court exercising its parenspatriae jurisdiction arising in such cases. (Vide GauravNagpal v. Sumedha Nagpal11.)

19. The statutory provisions dealing with the custodyof the child under any personal law cannot and mustnot supersede the paramount consideration as to whatis conducive to the welfare of the minor. In fact, nostatute on the subject, can ignore, eschew or obliteratethe vital factor of the welfare of the minor. (VideElizabeth Dinshaw v. Arvand M. Dinshaw12,Chandrakala Menon v. Vipin Menon13, Nil Ratan

11(2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1 : AIR 2009 SC 557 12 (1987) 1 SCC 42 : 1987 SCC (Cri) 13 : AIR 1987 SC 3 13 (1993) 2 SCC 6 : 1993 SCC (Cri) 485


40

Kundu v. Abhijit Kundu14, Shilpa Aggarwal v. AviralMittal15 and Athar Hussain v. Syed Siraj Ahmed16.)”

27. Statements made by the parents during the course of mediation may not

be relied upon on the ground of confidentiality but natural responses and

statements made by the minor to the Counsellor would certainly afford a

chance to decide what is in the best interest of the child. A child may respond

naturally and spontaneously in its interactions with the Counsellor, who is

professionally trained to make the child feel comfortable. Record of such

interaction may afford valuable inputs to the Court in discharge of its duties in

parens patriae jurisdiction. If during such interaction issues or aspects

concerning welfare of a child are noticed, there is no reason why the Court be

deprived of access to such aspects. As held by this Court in various

judgments, the paramount consideration ought to be to see what is in the best

interest of the child.

28. In terms of Sub Rule (viii) of Rule 8, the Counsellor is obliged to give

report, inter alia, relating to home environment of the parties concerned, their

personalities and their relationship with the child and/or children in order to

14 (2008) 9 SCC 41315 (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 19216 (2010) 2 SCC 654 : (2010) 1 SCC (Civ) 528


41

assist the Judge in deciding the question of guardianship of any child or

children. The intention is clear that the normal principle of confidentiality

will not apply in matters concerning custody or guardianship issues and the

Court, in the best interest of the child, must be equipped with all the material

touching upon relevant issues in order to render complete justice. This

departure from confidentially is consistent with the underlined theme of the

Act in general and Section 12 in particular. Once there is a clear exception in

favour of categories stated therein, principles in any other forms of

mediation/conciliation or other modes of Alternative Dispute Resolution

regarding confidentiality cannot be imported. The effect of such exception

cannot be diluted or nullified. In our view, the High Court considered the

matter in correct perspective in paragraphs 17 to 20 of its judgment dated

07.02.2017.

29. There is, however, one aspect which must also be considered and that is

who is the “Counsellor” within the meaning of Rule 8 and whether the

Counsellor who assisted the court in the present matter comes within the four

corners of said provision. It is true that under Section 6 the Counsellors are

appointed by the State Government in consultation with the High Court. It is


42

also true that the Counsellor in the present case was not the one who was

appointed in terms of Section 6 but was appointed by a committee of the High

Court and her assistance had been requested for in connection with many

matters. The order passed on 06.05.2016 had indicated that the Mediator

could join “any other person” as may be deemed necessary for a holistic and

effective mediation. The next order dated 11.05.2016 did mention the name

of the Counsellor and the fact that the Counsellor had a fruitful meeting with

Aditya. The Counsellor, thereafter, interacted with him on 08.07.2016 and

11.07.2016, based on which interaction, a report was submitted on

21.07.2016. The engagement of the Counsellor was thus in complete

knowledge of the parties as well as with express acceptance of the High

Court. It may be that said Counsellor was not appointed under Section 6 of

the Act but if the paramount consideration is the welfare of the child, there

cannot be undue reliance on a technicality. As a matter of fact, the width of

Section 12 of the Act would admit no such restriction. The report given by

the Counsellor in the present case cannot, therefore, be eschewed from

consideration. It is noteworthy that there was absolutely nothing against the

Counsellor and in the judgment under appeal, the High Court went on to

observe in para No.30 that the Counsellor was well experienced and known


43

for her commitment and sincerity to secure a settlement which would be

satisfactory to all.

30. We do not, therefore, see any reason why the reports in the present case,

be kept out of consideration.

31. We, therefore, allow this appeal, set aside the judgment dated 11.12.2017

passed by the High Court and restore the earlier judgment dated 17.02.2017

passed by the High Court of Delhi. There shall be no order as to costs.

…………..…..……..……J. (Abhay Manohar Sapre)

....………….……………J. (Uday Umesh Lalit)

New Delhi,February 15, 2019

Documents

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE ... · SLP(C)No.9267 of 2018 Perry Kansagra vs. Smriti Madan Kansagra 3 Petition dated 06.11.2012 was registered as No.G-53